Association offences
Table of Contents
Table of Contents
2
Policy statement and principles
4
What
4
Why
4
How
4
Overview
5
Purpose
5
Health and safety duties
5
Related information
5
Offences reported and recorded
6
Offences reported to, or discovered by Police must be recorded
6
Code book ‐ charge wording, penalties and more
6
Accessory after the fact
7
What is an accessory after the fact?
7
Examp es
7
Who are not accessories after the fact?
7
Rece v ng
7
Establishing offence
7
Attempting to be an accessory
8
Table of offences
8
Penalty
8
Who may be charged
9
f the offender s acqu tted
9
Evidence of offending
9
Further information
9
Conspiracy
10
What is conspiracy?
10
When the cr me has not been comm tted
10
Table of offences
10
Proving the offence
10
Participating in a conspiracy
11
Mens rea
11
Offences outside New Zealand
11
P ace of comm ss on of offence
11
Charges
11
Consp racy between spouses or c v un on pa tners
11
Consp r ng w th unknown persons
12
Substantive charges
12
Procedures when obtaining evidence
12
Notes about ev dence
12
Further information
13
Parties to offences
14
What is a party to the offence?
14
L ab ty for probab e consequences
14
D fference between part es and accessor es after the fact
14
L ab ty for offences comm tted n a d fferent way
14
Definitions
14
A d ng
15
Abets
15
nc tes
15
Counse s
15
Procures
15
Probab e consequence
15
Any person
15
Offence
15
Further examples
15
Establishing offences
16
Attempts
16
Mens rea
17
Negligence
17
Bystanders
17
Spec a re at onsh p w th offender s requ red
17
Investigating parties
17
Further information
17
Secondary offences by parties
19
Liability for secondary offences
19
Examp e
19
Question of fact
19
Further information
19
Prosecution and conviction of parties to offences
20
Proceedings against principal and secondary offenders
20
me m t
20
Convictions
20
Conv ct on of pr nc pa offender not necessary
20
Uncorroborated ev dence of accomp ces
20
Innocent agents
20
Formulating charges
20
Charges under sect on 66
21
Spec f c party offences
21
Examp es of spec f c pa t es re ated offences
21
Further information
21
Association offences
Policy statement and principles
What
This chapter outlines secondary offences associated to a principal offence. An association offence is one where there are two or more
participants involved in the offence.
Association offences cover situations of:
‑ a person being a party to an offence at any or all stages of aiding, abetting, or actually committing an offence and includes
inciting, counselling, or procuring, another person to commit the offence
‑ more than one offender being involved, then there is generally a conspiracy relating to that offence
‑ when the principal offence has been committed and other people may become involved later as accessories after the fact.
Why
Association offences are central to the provisions of the Crimes Act 1961. They specify the various ways in which persons can become
liable for participating in the commission of offences. Police have a responsibility to keep people safe from victimisation by:
‑ preventing harm
‑ investigating parties to offences, conspirators and accessories after the fact
‑ apprehending offenders.
How
Police will ensure:
‑ they continue to work pro‐actively with partnerships, prevention first and victim focused strategies, and
‑ association offences are investigated as thoroughly as principal offences and resolution action taken as deemed appropriate.
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Overview
Purpose
This chapter explains the law, gives examples, and provides basic procedures and guidelines for investigating each of these association
offences:
‑ accessory after the fact
‑ conspiracy
‑ parties to an offence.
If a planned offence does not take place, or if there is insufficient evidence to prosecute for the principal offence, do not forget that one
of these association offences may have been committed.
Health and safety duties
The expectation of the Commissioner and the Health and Safety at Work Act 2015 is that employees investigating association offences
will take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of themselves or others,
comply as far as they are reasonably able to with any reasonable instruction that is given to adhere with the Act and its regulations.
A key enabler is the application of the TENR‐Operational threat assessment in the workplace. See also ‘Health, safety and wellbeing’
for keeping our communities safe, and ensuring our people are safe and feel safe.
Related information
Refer also to the Police Manual chapter 'Attempts' for related information.
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Offences reported and recorded
Offences reported to, or discovered by Police must be recorded
The National Recording Standard (NRS Section 1.3) contains rules and principles governing recording of offences.
Recording offences intranet page provides an overview of these rules and contains links to training and resources.
Code book ‐ charge wording, penalties and more
The Legislative Reference Table (LRT ‐ Code Book) is a search tool that links to information about all offence, incident and task codes.
The code book provides information for each offence code.
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Accessory after the fact
What is an accessory after the fact?
An accessory after the fact is someone who, knowing a person was a party to an offence receives, comforts, or assists that person or
tampers with or actively suppresses any evidence against them, in order to enable them to escape after arrest or to avoid arrest or
conviction.
s71(1) Crimes Act 1961
Examples
Examples of accessories after the fact include people who, with the requisite knowledge:
‑ provide accommodation for an offender until they can escape from Police
‑ provide transport so the offender can escape
‑ destroy or dispose of documents or evidence (e.g. clothes or weapons used in an offence).
Who are not accessories after the fact?
Accessories after the fact are not people who are:
‑ a party to the offence (they are involved before or during the offence, whereas an accessory is involved after the offence is
completed (see R v Mane (1989) 5 CRNZ 375 and Larkins v Police [1987] 2 NZLR 282)
‑ a person whose spouse (not including a de facto spouse) or civil union partner was a party to an offence and who does an act to
enable that spouse or any other party to the offending to evade justice.
Receiving
A person does not become an accessory after the fact simply by receiving property that is dishonestly obtained. You must be able to
prove that they received the goods in order to help the offender.
Establishing offence
This table outlines the essential elements of liability which must be proved under section 71(1): see R v Thomson (1992) 9 CRNZ 108
(HC).
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You must prove:
Comment
(a) that an offence was committed by a
It must be proved that the person whom the accessory assisted was guilty of an offence,
person
although they do not need to have been convicted.
The alleged accessory is entitled to insist on proof that the offence was actually
committed, and to challenge that proof.
(b) that the suspect received, comforted, or Receiving, comforting, assisting or tampering with or actively suppressing evidence are
assisted that person or actively suppressed
not mutually exclusive categories of conduct and may overlap ‐ for example tampering
evidence against that person
with evidence may also amount to assisting.
There must be deliberate action and more than a mere omission to act, although in
some circumstances passive acquiescence may be culpable, for example, if a person
allows a known offender to take refuge in their house.
The accessory’s actions do not need to be entirely successful in helping the offender
escape from justice, but must help them in some way.
(c) that at the time of the above action, the
There must be proof of either actual knowledge or wilful blindness that the person
suspect knew that the person was a party to being assisted was party to the relevant offence.
the offence
This knowledge must exist at the time of the assistance.
(d) that the purpose of the suspect’s action
All acts must be done with the express intention of helping the person to evade justice,
was to help the person evade justice
but this does not need to be the accessory’s only or dominant motivation.
Attempting to be an accessory
A person can be charged for attempting to be an accessory where they do an act for the purpose of helping an offender evade justice,
but that act does not actually help the offender. For example, in Nicolls v R [2016] NZCA 201, the defendant was convicted of
attempting to assist the offender to avoid arrest despite the fact that her texts warning him of the presence of the Police near his hiding
place were sent after he had in fact been taken into custody.
Table of offences
While section 71 provides a definition of accessory after the fact, it does not create a substantive offence. There is provision for the
punishment of accessories in a small number of offences, and in other cases, section 312 applies.
Offence
Crimes Act 1961 section Category
Accessory after the fact to treason
76
Category 4 ‐ see note below table
Accessory after the fact to piracy
97
Category 3
Accessory after the fact to murder
176
Category 4 ‐ see note below table
Accessory after the fact to a crime other than those specified 312
To determine category ‐ see note below table.
Note: Accessory after the fact offences are usually the same category of offence as the principal offence, by virtue of section 6(2)(c) of
the Criminal Procedure Act 2011. For example, murder is a Category 4 offence, thus the offence of accessory after the fact to murder
also features as Category 4. There may be exceptions for specific offences that are listed in the Court of Trial Protocol for Category 2
and 3 offences, for example the offence of being accessory after the fact to piracy (section 97).
Penalty
Unless a different penalty is specified in the Crimes Act or another enactment, an accessory after the fact to any imprisonable offence is
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liable to these penalties (s312).
If the imprisonable offence is
punishable by...
an accessory after the fact is liable to a term of imprisonment...
imprisonment for life
not exceeding 7 years
imprisonment for 10 or more years not exceeding 5 years
other penalties
not more than half the maximum punishment to which they would have been liable if they had
committed the principal offence.
Who may be charged
A person charged with being an accessory after the fact may be proceeded against:
‑ whether or not the principal offender or any other party to the offence or the person by whom the property was obtained has
been proceeded against or convicted
‑ alone, as for a substantive offence, or jointly with the principal or other offender or person by whom the property was stolen or
dishonestly obtained.
(s137 Criminal Procedure Act 2011)
If the offender is acquitted
A person may be convicted as an accessory after the fact even if the original offender has been or may be acquitted (whether in a joint
or separate trial) unless in all the circumstances the accessory's conviction is inconsistent with that acquittal.
Inconsistency depends on the state of the evidence. For example, where the same evidence is relied upon to prove elements of the
accessory charge and to prove the principal offence, the quashing of the principal offender’s conviction due to a material misdirection
on the elements of the offence will mean that the accessory’s conviction cannot stand: Tere v R [2011] NZCA 549; Lemanu v R [2011]
NZCA 613.
Evidence of offending
The evidence for a charge of accessory after the fact is usually discovered when you are investigating the principal offence or after the
principal offender's arrest. For example:
‑ a search of the crime scene or principal offender's address may indicate someone has tampered with evidence, or
‑ a delay in locating the offender could mean they are being hidden.
Evidence of the suspect's involvement may come from:
‑ their admission of helping the offender
‑ their behaviour revealing guilty knowledge
‑ the principal offender's admission of receiving help after the crime
‑ independent witnesses
‑ circumstantial evidence
‑ your own observations (e.g. seeing the person hinder Police in their investigation or helping the offender in some other way)
‑ forensic evidence (e.g. DNA located on murder weapon of an accessory).
Further information
See the commentary in Westlaw NZ for further explanation of the terms applied to section 71 (accessory after the fact) of the Crimes
Act 1961.
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Conspiracy
What is conspiracy?
Conspiracy is not defined in statute but left to common law to establish the ingredients of the offence.
In essence, a conspiracy is an agreement between two or more people to commit an offence (an act or omission punishable by
statute).
When the crime has not been committed
Conspiracy obviously occurs before the principal offence is committed or attempted. Therefore, in cases where the crime has not
actually been committed, and where there is insufficient evidence to prove attempt, a charge of conspiracy may be appropriate.
Table of offences
This table lists conspiracy offences and their jurisdiction.
Conspiracy to...
Crimes Act section
Category
commit an offence other than those specified in Crimes Act 1961
310
See below*
(see note below)
commit treason
73(f)
See below*
commit piracy
96
See below*
make a false accusation
115
See below*
defeat justice
116
See below*
murder
175
See below*
prevent collection of rates and taxes
309
See below*
*Conspiracy offences are the same category of offence as the principal offence, by virtue of section 6(2)(c) of the Criminal Procedure
Act 2011.
Note: Section 310 applies to any conspiracy to commit any offence, in other words any act or omission definable and punishable under
the provisions of section 6 of the Criminal Procedure Act 2011. Conspiracy is not in itself an offence ‐ the offence is conspiring to
commit a specified offence.
Proving the offence
A conspiracy exists as soon as two or more people agree to commit an offence, or in other words to do an unlawful act by unlawful
means (Director of Public Prosecutions v Doot [1973] AC 807). It continues until they have carried out their plan or ended their
agreement.
The ‘agreement’ is the crucial factor. The agreement need not be expressed clearly in words. It is sufficient that the conspirators act
together with the same or common aim. People can create a conspiracy in a moment, and it may last only for a minute.
Mere intention to commit an offence is not enough to create a conspiracy ‐ a conspiracy exists when the plan moves beyond intention
and there is an agreement to carry it into effect (R v Dil on [1956] NZLR 110 (CA)). However the exact details of the planned offending do
not need to be finalised, and no actual steps need to be taken toward offending. For example, there may be a conspiracy to rob a bank,
even though the question of which bank is still left open.
If ‘A’ plans to commit an offence and ‘B’ simply knows that ‘A’ has a plan, or was present when A discussed the plan, this is not enough
for the charge of conspiracy. Each party to the conspiracy must agree to the plan and intend that it be carried out.
The courts may deduce that a conspiracy has occurred merely because of the actions of the people involved.
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Participating in a conspiracy
The agreement need not be secret. However, people who know of the agreement are not guilty of conspiracy unless they are actually
part of the agreement.
As conspiracy is complete upon agreement and continue until the plan is carried out, a person withdrawing from the agreement is still
guilty of conspiracy, as is any person who becomes party to the agreement after it has been made. However, a person can effectively
withdraw before the actual agreement is made.
A person withdrawing from the agreement is still guilty of conspiracy, as is any person who becomes party to the agreement after it
has been made. However, a person can effectively withdraw before the actual agreement is made.
Because the conspiracy continues until the offenders commit the offence or end the agreement, people can withdraw from the
conspiracy and fresh conspirators join, but there is still only one conspiracy as long as the people involved are acting together to
achieve the same criminal aim. In such a situation it would be practical to charge all of the alleged co‐conspirators jointly.
A person can be tried and convicted of conspiracy alone, e.g. when the other party is not able to be located to be charged. (R v Shaw)
Mens rea
Members of a conspiracy need to have both an intent to agree, and an intention that the plan actually be carried out. Passive
acquiescence in a course of conduct over which the defendant would have had no influence is not enough.
In Churchil v Walton [1967] 2 AC 224 the judge held that the accused must have an intention to commit an act which, on the facts
known to them, is unlawful. They don’t need to know it is a crime, but they do need to know the facts that make it unlawful. An
ignorance of the law is no excuse (s25 Crimes Act 1961).
While there must be an intention that the agreement be carried out, a participant in a conspiracy need not be capable of committing
the substantive offence (e.g. a quadriplegic can conspire to commit murder even if they are incapable of carrying it out).
Offences outside New Zealand
Under section 310 of the Crimes Act, it is an offence to conspire to commit an offence or to do or omit to do anything, in any part of the
world that would be an offence in New Zealand. The person has a defence if they can prove that the act is not an offence under the law
of the place where it was to be committed.
Place of commission of offence
Under section 7 of the Crimes Act, an offence is deemed to have been committed in New Zealand (and therefore within the jurisdiction
of New Zealand's courts) if:
‑ any act or omission forming part of the offence occurs in New Zealand, or
‑ any event necessary to the completion of the offence occurs in New Zealand.
The person charged with the offence, does not need to have been in New Zealand at the time of the act or omission or event.
It is sufficient that one act or omission forming part of the offence, necessary for its completion occurs in New Zealand. (R v Sanders
[1984] 1 NZLR 636)
Charges
If the conspirators are charged:
‑ jointly, and any are acquitted, the others will be acquitted only if the evidence against them all is the same
‑ separately, some may be acquitted while others are convicted.
Conspiracy between spouses or civil union partners
A person is capable of conspiring with their spouse or civil union partner, or with their spouse or civil union partner and any other
person (s67 Crimes Act 1961).
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Conspiring with unknown persons
A person who conspired with other unknown people may be indicted, tried alone and convicted, as long as there is proof that an
agreement was made with the unknown person, e.g. a phone conference call where an agreement is reached but the ID of one is
unknown. (R v White (1945) GLR 109 and Shaw v DPP [1962] AC 220)
Substantive charges
If you can prove a substantive charge of a specific offence, you should charge the suspect with that offence, not with conspiracy. For
example, if you can prove two people murdered another, charge them with murder, not conspiracy to murder.
You should not normally charge a suspect with an offence and conspiracy to commit that offence because:
‑ the judge may disallow evidence admissible only on the conspiracy charge because it might prove to be prejudicial to the other
charge (e.g. the jury may assume the accused’s guilty knowledge or intent regarding the substantive charge on the basis of the
evidence presented to support the conspiracy charge)
‑ an added conspiracy charge can unnecessarily complicate and prolong a trial
‑ if the conspiracy charge is not founded on evidence or is an abuse of process, it may be quashed
‑ the court may order severance in the interests of justice (i.e. each charge or in some circumstances series of charges may be
heard at separate trials).
Do not omit a conspiracy charge if the substantive offence does not represent the total criminality. For example, if two people
succeeded in burning down a warehouse and then conspired to murder a witness, they should be charged with arson and conspiracy
to murder.
Procedures when obtaining evidence
Follow these steps when obtaining evidence of conspiracy.
StepAction
1
Obtain statements from witnesses about:
‑ who made the agreement
‑ who else was present at the time
‑ the planned offence
‑ whether the conspirators acted to further their aim.
2
Interview everyone involved. People are usually unfamiliar with the offence of conspiracy and, while they may be reluctant to
admit committing any substantive offence, they will often discuss planning a crime, which may constitute conspiracy.
3
Establish:
‑ that there was an agreement to commit an offence
‑ the identity of the parties
‑ whether any of the parties said, wrote, or did anything to further the common aim.
4
Consider:
‑ obtaining a search warrant to seize evidence to support charge(s)
‑ electronic interception if circumstances justify this.
5
Evaluate the evidence and consider whether a charge of conspiracy is appropriate.
Notes about evidence
‑ Evidence given by an accomplice against their co‐conspirator does not need to be corroborated for the accused to be convicted.
Neither does a judge have to warn a jury about the absence of corroboration (s121 Evidence Act 2006).
‑ Conspirators should be jointly charged. Anything one of them said or did to further the common intention is admissible against
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the other.
Further information
See the commentary in Westlaw NZ for further explanation of the terms applied to section 310 (conspiring to commit an offence) of the
Crimes Act 1961.
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Parties to offences
What is a party to the offence?
A party to the offence is a person who either:
‑ actually commits the offence
‑ does or omits an act for the purpose of aiding a person to commit the offence
‑ abets a person in the commission of the offence
‑ incites, counsels or procures any person to commit the offence.
All parties are equally liable for the substantive offence.
s66(1) Crimes Act 1961
Liability for probable consequences
Where offenders agree to commit an offence together, all who entered the agreement can be charged as parties to that offence. They
can also be charged as parties to any secondary offence any one of them commits in order to assist the commission of the offence
originally agreed to (provided that the commission of the secondary offence was a probable consequence of pursuing the unlawful
agreement).
s66(2)
Difference between parties and accessories after the fact
Parties include those who actually commit the offence (principal offenders) and those who assist before and during its commission
(secondary offenders). A person involved after the offence is completed is not a party, but an accessory after the fact.
Larkins v Police [1987] 2 NZLR 282
Liability for offences committed in a different way
A person who incites, counsels or procures another to commit an offence is still liable as a secondary party under section 66(1) even if
that offence is committed in a different way than incited, counselled or suggested. The offence must be in the same type as the
secondary party originally intended, or one of a range of offences that they knew the principal offender was likely to commit.
s70(1)
Definitions
This table gives meanings and examples of key terms.
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Term
Means
Example
Aiding
To assist or help a person commit the offence or give
‑ Keeping lookout for someone breaking and entering.
them support, advice or information.
‑ Supplying jumper leads or tools for someone unlawfully
taking a motor vehicle.
(There must be proof of actual assistance).
‑ Telling a burglar when their victims are out of the house.
Abets
To instigate or encourage another person to commit
A woman encourages her lover to murder her husband.
the offence.
Note: “Abets’, “incites” and “counsels” overlap on their
ordinary meanings.
Incites
To rouse, stir up, stimulate, or urge a person to commit A sports fan spurs on another to assault a protester and yells
the offence.
approval while the offence is taking place.
Note: “Abets’, “incites” and “counsels” overlap on their
ordinary meanings.
Counsels
To intentionally instigate the offence by advising a
Teaching someone how to open a safe.
person on how to commit an offence, or planning its
commission for another person.
Note: It is not necessary for the person counselling the offender
to know about the particular offence the offender plans to
Note: “Abets’, “incites” and “counsels” overlap on their commit.
ordinary meanings.
Procures
To cause an offence or ensure its commission by
Hiring someone to undertake a contract killing.
knowingly and intentionally obtaining another person
to carry it out.
Note: It is possible to procure by fraud, persuasion, words or
conduct, e.g. by offering money to someone.
You procure by setting out to see that something
happens and taking steps to ensure that it does.
Probable
Something that the person knows could well happen ‐
consequence a real or substantial risk.
R v Gush [1980] 2 NZLR 92 (CA)
Any person Includes an innocent agent
Innocent “agent” may be procured to commit offence.
R v Paterson: used an innocent agent to uplift TV from a flat he
wrongfully had a key to. Act of innocent agent was regarded as
act of person who procured them.
Offence
As categorised by section 6 of the Criminal Procedure
Act 2011.
Further examples
This table gives further examples of when people are parties to offences.
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A person who...
is a party to...
supplies equipment or lends a motor vehicle to be used in a burglary
burglary
brings a woman to a party with the intention that she is subjected to gang rape
rape
as an employee, gives the office key to a burglar, or who intentionally leaves a factory door unlocked for a burglar
burglary
unlawfully takes a car so that an accomplice can use it as a getaway vehicle for a robbery
robbery.
Establishing offences
This table outlines the key ingredients of 'party' offences and what must be proved.
Offence
You must prove the suspect’s identity and
Comment
ingredient that...
& Crimes
Act section
Party to the
‑ they actually committed the offence
This may include the use of an innocent agent to carry out the act.
offence
s66(1)(a)
Party to the
‑ the offence was committed by a
You do not need to prove which of the subsections (b)‐(d) applied to the
offence
principal offender; and
suspect, just that the suspect participated in the offending. The
‑ the secondary party aided, abetted,
secondary party must have rendered actual assistance to the principal
s66(1)(b) ‐
incited, counselled or procured the
offender (Ahsin v R 2014] NZSC 153).
(d)
principal party in the commission of the
offence by words or conduct or both; and
‑ the secondary party intended to aid etc.
the principal party to commit the offence;
and
‑ the secondary party knew the essential
physical and mental elements of the
offence to be committed.
Party to a
‑ the suspect was party to an agreement This implies a forming of common intention. Subsection (2) deals with
secondary
to prosecute an unlawful purpose; and
offences that were not planned by the conspirators, but are committed
offence
‑ knew that the secondary offence was a in furtherance of the planned offence. They must be reasonably
probable consequence of the prosecution foreseeable.
s66(2)
of the common purpose.
Party who
‑ the offence was committed by a
The word “likely” carries the same meaning as “probable” in section 66
incites,
principal offender; and
(2) ‐ something that is a real or substantial risk, and that could well
counsels or
‑ the secondary party incited, counselled, happen.
procures
or procured the principal offender to
commit an offence; and
s70(1) and
‑ that offence was committed in a way
(2)
different from that which was incited,
counselled, or suggested; or
‑ the offence committed was a likely
consequence of that inciting, counselling
or procuring.
Attempts
Inciting, counselling and procuring take place before the offence is committed. This means it is still possible to be guilty of being a
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party to an attempted offence if the principal offence was not committed. Liability for this situation is covered by section 311(2).
Except where punishment is specifically provided, everyone who incites, counsels, or attempts to procure any person to commit any
offence, when that offence is not in fact committed, is liable to the same punishment as if he had attempted to commit that offence.
Mens rea
In general, a secondary offender cannot be found guilty if the principal offender does not have the necessary mens rea (intent).
For exceptions, refer to sections 21(1) and 22(2) (relating to children and young people), 23(4) (insanity), 178(8) (infanticide) and 180
(5) (suicide) of the Crimes Act 1961.
Negligence
A secondary offender does not need to know that the law was being broken, but they must know the essential facts of the offence.
Secondary offenders cannot be held liable for mere negligence or failing to investigate, but may be liable if they deliberately “turn a
blind eye” to the principal offender's actions.
Bystanders
A witness to an offence is not a secondary party merely because they did nothing to prevent it. But if a bystander actively encourages
someone to commit an offence (e.g. urging another to assault a Police officer) the act of encouragement would make that person a
secondary party. An inference of intention to encourage can be inferred if a person is deliberately present, offering no opposition to the
offending where they might have been expected to do so (Charnley v R [2013] NZCA 226).
Special relationship with offender is required
A person who merely stands by at the scene of a crime and does nothing is not liable as a secondary party unless they have a special
relationship with the offender, or owe a legal duty to the victim or general public. If a person is under a legal duty, (e.g. those duties
identified under sections 150, 150A ‐ 157 of the Crimes Act) they can be liable under section 150A(2) for omitting to perform that legal
duty.
This table shows examples of situations where someone with a duty of care to an offender may be liable as secondary parties for aiding
and abetting an offence, if they fail to intervene in its commission.
Situation
Relationship and duty to offender
An army sergeant who watches one of his soldiers The army sergeant has a special relationship with the offender, since he has a
assault a civilian.
right or power of control over the actions of his soldiers.
A parent who looks on while his child is assaulted The parent has a legal duty to protect and assist the child.
by an acquaintance.
A person who does not take reasonable
The driving teacher has a legal duty to take reasonable precautions to protect the
precautions when teaching another to drive.
general public.
Investigating parties
Use the same procedures when investigating parties as you would for the principal offender. You will usually discover parties during
the course of your enquiries. For example:
‑ it may be apparent from the crime's reconstruction that another person must have been involved, or that the offender received
advice or assistance
‑ the principal offender may admit when giving a statement that others were involved
‑ a suspect or witness may admit providing aid
‑ a witness may give evidence of another person's involvement
‑ you may receive information indicating someone else was involved.
Further information
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For further explanation of the terms, see the commentary in Westlaw NZ:
‑ section 66 (parties to offences)
‑ section 70 (offence committed other than offence intended).
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Secondary offences by parties
Liability for secondary offences
A secondary offence is an offence that is committed during the process of committing the principal, intended offence, or the
prosecution of a common unlawful purpose.
Party liability for secondary offences is covered by section 66(2), which provides that where two or more people form a common intent
to help each other do something unlawful, each is a party to every offence committed by any one of them if the commission of that
offence was known to be a probable consequence of pursuing the common purpose. Therefore a person may be liable for an offence
that they did not intend or actively participate in, as long as it was something that they knew could well result from the prosecution of
their agreed purpose.
Conversely, if one party to the agreement commits a secondary offence that goes beyond what could have been seen as a probable
consequence of the planned offending, other parties will not be liable for that offence. This may involve the commission of a different
type of offence, or the use of a more serious level of violence than was planned or anticipated.
Liability for secondary offences is also available under section 70(2). Where someone incites, counsels or procures another person to
commit an offence, they are liable for every offence that the person commits, if they knew that offence was a likely consequence of
their inciting, counselling or procuring.
Note: Sections 66(2) and 70(2) can also cover party liability for the intended offence, although in such cases liability will usually be
available under sections 66(1) and 70(1).
Example
If the parties agree to an offence that involves the use of a weapon or other serious violence, and the principal offender kills someone
while carrying out their joint intention, then the secondary offender is equally responsible in law for the killing. As it was a probable
consequence of their plan. So, if ‘A’ acts as a lookout for ‘B’ who is committing an armed robbery, and ‘B’ happens to kill their victim,
‘A’ is also liable for culpable homicide. (R v Betts and Ridley (1930) 22 Cr App R 148).
If the parties agree to an offence which they do not expect to involve violence and, while carrying out that common intention, the
principal offender uses violence, then a secondary offender who took no physical part would not be liable for the consequences. For
example, if during the course of a burglary where violence was not anticipated, the principal offender assaults a bystander, a lookout
would not be liable for the assault.
Question of fact
It is a question of fact, for the jury to decide, whether suspects knew that furthering the common aim was likely to result in the offence
in question.
Further information
See the commentary in Westlaw NZ for further explanation of the terms applied to section 66 (parties to offences) of the Crimes Act
1961.
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Association offences
Prosecution and conviction of parties to offences
Proceedings against principal and secondary offenders
You may take proceedings and obtain a conviction against every secondary offender, either with (jointly) or separately from the
principal offender. Liability of secondary parties depends generally on their knowledge, intention and actions ‐ not the knowledge,
intentions and actions of the principal offender.
Time limit
The time limit for filing a charging document against a secondary offender is the same as that for the principal offender.
Convictions
An accomplice secondary party can be convicted of a lesser crime than the one that the principal offender is convicted of, particularly
in cases of culpable homicide (which comprises both murder and manslaughter). For example, in R v Hartley [1978] 2 NZLR 199 the
Court of Appeal ruled that in a gang shotgun killing, accomplice secondary party could be convicted of manslaughter and the principal
offender of murder. Whether a secondary party is liable for murder or manslaughter will depend on their level of intention or foresight.
A person charged as a party to murder will be guilty of:
‑ murder, if they:
‑ intentionally helped or encouraged the primary offender to kill someone, or
‑ foresaw it as a real risk in the situation that arose that one of the parties to a common unlawful purpose would kill with
murderous intent
‑ manslaughter, if they:
‑ knew that at some stage there was a real risk of killing short of murder, or
‑ foresaw a real risk of murder, but the killing occurred in circumstances different from those contemplated, or
‑ can be expected to have known there was an ever‐present real risk of a killing e.g. due to the presence of lethal weapons.
R v Tomkins [1985] 2 NZLR 253 (CA)
Conviction of principal offender not necessary
Secondary liability needs to derive from the liability of a principal offender, so it must be proved that a principal offender committed
the offence to which the defendant is a secondary party. However a person can still be convicted as a secondary party if the principal
offender has not been prosecuted or convicted. This may be because the principal offender cannot be located or identified, or is
acquitted due to infancy, insanity, death, or the availability of a defence.
So long as it can still be proved that the principal offender actually committed the offence, even if they have been acquitted, the
secondary party can be liable. However, the conviction of a secondary party where the principal offender has been acquitted will be
unsafe if the verdicts are truly inconsistent ‐ for example, if there are different findings as to the principal’s liability based on the same
evidence.
If the offence can be committed only by a particular class of person, such as the driver in a hit and run incident, and that person is
acquitted, no one can be convicted as a secondary party.
Uncorroborated evidence of accomplices
A court can convict on the uncorroborated evidence of an accomplice.
Innocent agents
An innocent agent is someone who actually commits the offence within the meaning of section 66(1), but does so without the required
mental state. This innocence may be due, for example, to youth, mental disability or ignorance of the facts. An innocent agent cannot
be convicted as a secondary party (R v Paterson [1976] 2 NZLR 394 (CA)). The person who directs an innocent agent to commit a crime
can be treated as the principal offender, liable under section 66(1)(a), rather than a secondary party, as they have the required mental
state and have committed the physical elements of the offence through the agent.
Formulating charges
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Association offences
Charges under section 66
Where section 66(1) applies and it can be clearly shown how the suspect became a party to the offence, you must use the same
wording as for the principal offender, prefacing the charge with the words 'was a party to'.
You must also add at the end of the charge ". .in that you did:
‑ aid
‑ abet
‑ incite
‑ counsel, or
‑ procure .. (use one or a combination of these words, e.g. 'aid and abet' or 'counsel and procure')
. .the commission of the said offence."
If a person is being charged as a party to an offence, the relevant option from section 66(1) should be referred to in the charging
document. This ensures the defendant knows the charge being laid. If this is not done, the prosecutor must advise the court that the
defendant is charged as a party, before:
‑ the summary of facts is read out on a guilty plea
‑ evidence is heard in a judge‐alone trial or jury trial as the case may be.
If section 66(2) applies (i.e. the person is a party to a secondary offence) or it is unclear which subsection applies, formulate the charge
as for a principal offender.
Specific party offences
Where there is a specific offence of aiding, abetting, inciting, counselling or procuring, choose a charge under that section (e.g. inciting
a person to resist a constable ‐ s23(a) Summary Offences Act 1981).
Note: In offence provisions such as s23(a) which specifically refer to the actions of the secondary party (i.e. 'inciting') you do not cite
s66 on the charge. This is because the secondary element of "inciting" is an ingredient of the substantive offence under s23(a), namely
inciting a person to resist arrest.
Examples of specific parties related offences
Some examples of association offences are:
Section
Offence
s98A Crimes Act 1961
Participation in an organised criminal group
s6A Summary Offences Act 1981
Associating with violent offenders
s6B Summary Offences Act 1981
Associating with serious drug offenders
Further information
See the commentary in Westlaw NZ for further explanation of the terms applied to section 66 (parties to offences) of the Crimes Act
1961.
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Attempts
Table of Contents
Table of Contents
2
Policy statement and principles
3
What
3
Why
3
How
3
Overview
4
Introduction
4
Purpose
4
Health and safety duties
4
Max m s ng safety and m n m s ng r sk
4
Hea th and safety shou d be an everyday conversat on
4
Table of ‘attempt’ related offences
5
Definition of attempt
6
Ingredients of attempt
7
Intent (mens rea)
7
Act (actus reus)
7
Omission
7
Proximity
7
Scenario table
8
Examples of proximate actions
8
Impossibility
9
Physical or factual impossibility
9
Legal impossibility
9
Police powers and attempt
9
Section 28 of the Summary Offences Act 1981; being found in a public place preparing to commit an
imprisonable offence
10
Ingredients of the section 28 offence
10
Powers
10
Possession of instruments for burglary
10
Examples of attempts to commit offences
11
Attempted theft
11
Attempted sexual contact with young person under 16
11
Attempted murder
11
Attempting to obtain money by deception
11
Attempted dishonest taking of motor vehicle
11
Attempted deception
11
Attempting to procure a controlled drug
11
Offences that cannot be attempted
11
Attempts at attempt
11
Acts to further an offence
11
Jurisdiction
11
Part and alternative convictions
11
Parties
12
Penalties
12
Procedures
13
Action when suspect is attempting to commit an offence
13
Action when suspect may be preparing to commit an imprisonable offence
13
Framing charges
13
Examp e
13
Attempts
Policy statement and principles
What
Section 72 of the Crimes Act 1961 sets out what constitutes an ‘attempt’. Any one who, having an intent to commit an offence, does or
omits an act for the purpose of accomplishing their object, is guilty of an attempt to commit the offence intended, whether in the
circumstances it was possible to commit the offence or not.
The section, does not, of itself, create an offence of attempt, but does provide that it applies to all offences.
Why
Key functions of the Police are law enforcement, crime prevention and the maintenance of public safety. With ‘attempts’ applying to all
offences Police can be focused on:
‑ preventing crime
‑ targeting and catching offenders before the principal offence is committed
‑ delivering a more responsive Police service.
How
‑ To meet law enforcement and crime prevention objectives, Police will investigate, intervene before the principal offences have
been committed and apply case management resolution to those people believed to be attempting to commit an offence.
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Overview
Introduction
As a general rule, an attempt to commit an offence is itself an offence. The definition of attempt is found in section 72 of the Crimes Act
1961. Section 72 does not create attempt offences. Attempt offences are found in specific statutory provisions that proscribe offences,
including attempting to commit those offences. For example, section 173 of the Crimes Act 1961 proscribes attempted murder and
provides a penalty for the offence of attempted murder. The table of offences (below) gives examples of the more common attempt
offences proscribed by legislation.
Section 311(1) of the Crimes Act 1961 establishes a penalty regime for attempt offences not dealt with specifically by statute. Section
311(2) makes it an offence to attempt to arrange for someone else to commit an offence. Making arrangements for someone else to
commit an offence is an attempt to commit the principal offence and is punishable accordingly.
Purpose
This chapter considers a body of case law that explains the law of attempt, what constitutes attempt and the nature of proximity. The
chapter also considers the offence of being found in a public place preparing to commit an imprisonable offence (section 28 of the
Summary Offences Act 1981) and procedures for investigating attempt offences.
Health and safety duties
Maximising safety and minimising risk
Maximising safety and eliminating or minimising risk at work is the responsibility of all Police employees and persons engaged by
Police to provide a service including contractors and their employees, trainees, interns and volunteers. It is delivered through meeting
the obligations under the Health and Safety at Work Act 2015 and Police safety policies.
A key enabler is the application of the TENR‐Operational threat assessment in the workplace.
The expectation of the Commissioner and the Act is that persons in the workplace will take reasonable care to ensure that their acts or
omissions do not adversely affect the health and safety of other persons, comply as far as they are reasonably able to with any
reasonable instruction that is given in order to comply with the Health and Safety at Work Act 2015or regulations under that Act. They
will co‐operate with any reasonable policy or procedure relating to health or safety at the workplace that has been notified to them
and take immediate action to stop any perceived or potential breach of the act or if impractical, immediately report the matter to a
supervisor.
Health and safety should be an everyday conversation
Relevant Police instructions include:
‑ Hazard management
‑ Health and safety
‑ this chapter in relation to the safe procedures for investigating attempt offences.
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Table of ‘attempt’ related offences
This table lists offences under the Crimes Act 1961 (or as stated below) relevant to this chapter.
Offence
Jurisdiction
Attempting to procure murder outside New Zealand when Category 4 offence
murder is not in fact committed
Section 68(2)
Attempted treason
Category 4 offence
Section 74(3)
Attempted piracy
Category 4 offence
Section 95
Attempting to pervert the course of justice
Category 3 offence
Section 117
Attempted sexual violation
Category 3 offence
Section 129
Attempted sexual intercourse with child or young person
Category 3 offence
Sections 131, 132 and 134
Attempted murder
Category 4 offence
Section 173
Attempting to procure murder in New Zealand when
Category 4 offence
murder is not in fact committed
Section 174
Attempted dishonest taking or conversion
Category 3 offence
Section 226(2)
Attempted arson
Category 3 offence
Section 268
Attempting to commit an offence other than those specified Category ‐ as for actual offence
Section 311(1)
Attempting to procure a person to commit an offence not
Category ‐ as for actual offence
committed
Section 311(2)
Being found in a public place preparing to commit a crime Category 1 offence for first offence or when offence committed later than
12 months since the previous offence
Section 28 ‐ Summary Offences Act 1981
Category 2 offence for a second or subsequent offence within 12 months
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Attempts
Note: Less common offences, set out in sections 102, 103, 104 and 105 of the Crimes Act 1961, are also defined in law as specific
attempts; for example, attempted corruption and bribery.
Definition of attempt
Section 72 of the Crimes Act 1961 defines ‘attempt’ but does not, of itself, create an offence of attempt. Section 72 provides that
attempt applies to all offences and 72(2) draws a distinction between attempting to commit an offence, and merely preparing to
commit an (imprisonable) offence (discussed below under the heading of ‘Proximity’).
Note: Preparing to commit an imprisonable offence may, in itself, be an offence; see the discussion of section 28 of the Summary
Offences Act 1981, below.
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Ingredients of attempt
These three elements of an attempt offence must be proven by the prosecution:
‑ Intent (mens rea)
‑ Act (actus reus)
‑ Proximity.
In addition, it must be legally possible, in the circumstances, for the offence to be committed (see discussion of physical or factual
impossibility and legal impossibility below).
Intent (mens rea)
The law distinguishes between an intention to commit an offence and an attempt to commit an offence. Mere dishonest intention does
not amount to an attempt. (R v Eagleton (1855) Dears CC 515; 169 ER 826 at p 538, p 835, Haughton v Smith [1075] AC 476; [1973] 3 All ER
1109)
In order for an attempt offence to be proven, it must be shown that the defendant intended to commit the completed offence. There
must be an attempt to commit an actual offence, not just an attempt to so something mistakenly believed to be an offence. For
example, if a person seeks to supply a (harmless) substance for use as a recreational drug wrongly believing that supply of that
substance is illegal no offence has been committed.
Whether or not intent exists is a question of fact for the jury. Intent may be proven by admissions or confession, or inferred from the act
itself. For example, if someone gets into a motor vehicle and turns the key in the ignition then an intention to drive away in the vehicle
may be inferred.
Act (actus reus)
There must be an overt act of such a kind that it forms part of a series of acts that would constitute commission of an offence if it were
not interrupted (Haughton v Smith [1075] AC 476; [1973] 3 All ER 1109). Effectively, the defendant must have put in train a series of
events that would lead to the completion of the offence.
An act may have both an innocent and a guilty explanation; but if admission of other evidence supports the guilty explanation, a
conviction may be entered.
Omission
Section 72 of the Crimes Act 1961 provides that an omission may amount to an attempt to commit an offence. For example,
withholding food and drink to an infant with the intention of starving the child to death may well be attempted murder.
Proximity
The test in New Zealand of whether an act is sufficiently proximate to the offence so as to amount to an attempt to commit that
offence is:
‑
Does the act or omission in question constitute a real or substantial step towards the commission of the offence?
(Per Police v Wylie [1976] 2 NZLR 167 (CA) at p 170)
The Court must apply common sense in determining whether an accused has gone beyond mere preparation, and has attempted to
commit the offence.
So the answer to the question of whether an act is merely preparatory, or whether it amounts to an attempt, depends on whether real
and practical step(s) or real and substantial step(s) toward the commission of the offence have been taken.
Put another way, in order for a crime to be attempted, an act must be done that goes beyond preparation of the crime, and is the
commencement of execution of that crime (per R v Henderson (1948) 91 CCC 97 at p 105).
The test of proximity as outlined above, "enables more emphasis to be placed on what has already been done than on what remains to
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Attempts
be done".
(Per R v B (No 5) 7/9/01, William Young J, HC Christchurch T19/01)
This does not necessarily mean that the suspect has carried out most of the series of acts necessary to commit and complete the
intended offence. The first step may, or may not, be enough to constitute an attempt. For example, if a person administers a small dose
of poison, intending to give further doses until death occurs, the act of giving the first dose may constitute attempted murder, even in
the absence of an intention that the first does cause death.
The test of proximity requires the exercise of fine judgement on the part of Police.
Scenario table
These scenarios may assist Police in determining the distinction between preparatory acts and real or substantial steps toward the
commission of an offence:
Scenario
Offence?
Intention
No offence
‐ thinks about burglary and gathers equipment.
Preparation
No offence
‐ decides on dairy to be burgled, borrows car.
Action
No offence
‐ drives to dairy and parks in vicinity.
Further action
Possible attempted burglary
‐ gets out of car, examines front door of dairy.
Still further action
Attempted burglary
‐ places jemmy in doorway, tries to spring door open.
Final action
Burglary
‐ door gives way, offender enters and steals items.
Examples of proximate actions
A man approached two girls and offered one of them money to show him to a place with which, it was later proved, he was familiar
and, on the way, he made indecent observations to her. He took the other girl's arm and offered her money to go with him to his place
without her companion. It was held that these acts justified a finding of attempted sexual intercourse with both girls ‐ R v Yelds [1928]
NZLR 18.
A man got into a car driven by his ex‐lover's new lover, and pointed a loaded sawn‐off shotgun at the driver, who wrested the gun from
him and escaped. It was held that:
‑ the actions of:
‑ obtaining the shotgun,
‑ shortening it, and
‑ going to the victim's car
were merely preparatory
‑ the actions of:
‑ getting into the car,
‑ taking out the loaded gun, and
‑ pointing it at the victim with the intention of killing him
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Attempts
were sufficiently proximate to convict the man of attempted murder.
(Per R v Jones [1990] 1 WLR 1097)
If in doubt, your colleagues and / or Legal Services will be able to assist you to decide whether an act or omission amounts to an
attempt.
Impossibility
Section 72(1) of the Crimes Act provides a person may be guilty of attempting to commit an offence even in circumstances where it
would not have been possible to commit the actual offence.
It is not necessarily a defence to a charge of attempting to commit an offence that the actual offence could not have been carried out;
i.e. it would have been impossible to carry out the offence. There are two types of impossibility; legal impossibility and factual
impossibility.
Physical or factual impossibility
An act is physically or factually impossible if the act in question amounts to an offence, but the accused is unable to commit it due to
interruption, ineptitude, or any other circumstances beyond their control. For example:
‑ The accused was seen to hustle some women on a railway platform, and he put his hand in the pocket of one of them. The
woman could not be located to give evidence, and accordingly there was no evidence that there was anything in her pocket (R v
Ring (1892) 17 COXCC 491).
‑ A man bought hedge clippings believing they were cannabis (Police v Jay [1974] 2 NZLR 204).
The defendants in each case acted with criminal intent, and were found guilty of attempted theft and attempted drug offending
respectively.
Legal impossibility
By contrast with factual impossibility, where completion of an act is legally impossible, the person attempting that act cannot be
convicted of attempt, even if they had criminal intentions. For example:
‑ In some cases, the law states that a particular act is not an offence. See, for example, section 246(4) of the Crimes Act 1961. The
subsection allows dealings in goods which had once been the subject of a crime of dishonesty but which had been recovered.
Thus if A steals goods from B, and B later recovers them, any disposition to C does not amount to receiving even though C was
aware of A's theft.
Note: An attempt to receive such stolen goods is therefore possible in fact, but impossible in law.
‑ The suspect may be mistaken in their belief that the completed act is illegal. That is, there must be an attempt to commit an
actual offence, not an attempt to do something that, contrary to the person's belief at the time, does not amount in law to an
offence. For example, it is not an offence to attempt to sell the hallucinatory plant, Datura, in the mistaken belief that possession
of it is illegal.
Police powers and attempt
In cases of suspected attempted offending, Police employees have the same powers as if the principal offences had been committed.
Accordingly, suspects may be arrested without a warrant under section 315(2)(a) and (b) of the Crimes Act 1961 if the principal offence
is punishable by imprisonment. If the offence is not punishable by imprisonment, check your powers in respect of that offence.
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Section 28 of the Summary Offences Act 1981; being found in a public place
preparing to commit an imprisonable offence
Section 28 of the Summary Offences Act 1981 for the offences and penalties.
'Being found in a place' means to be found on, or discovered at the place, or seen entering or leaving that place, by some person, at the
time of the incident. In Braxton v Sugrue (1929) GLR 31, the suspect admitted to being on the property, but as he had not been found or
seen on the property, the judge ruled that the admission was not sufficient evidence.
Ingredients of the section 28 offence
Under section 28(1) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
‑ were found in a public place, and
‑ were behaving in a manner from which it could be reasonably inferred that they were preparing to commit an imprisonable
offence.
In determining the defendant's guilt the court may have regard to any previous convictions of a similar nature (section 28(3) refers).
You do not have to specify the imprisonable offence. It is sufficient to show that the suspect was preparing to commit a particular class
of crime (Mellon v Police (unreported), High Court Dunedin, 19 July 1994, AP8/94, AP9/94).
Note: Section 28 of the Summary Offences Act applies to offences punishable by imprisonment, reference to 'crime' being replaced as
a result of the Criminal Procedure Act 2011.
Powers
You can arrest a person suspected of 'preparing to commit an imprisonable offence' pursuant to section 28(1) of the Summary
Offences Act 1981 without warrant under section 39(1) of the Summary Offences Act 1981.
Possession of instruments for burglary
Section 233 of the Crimes Act 1961 and section 14 of the Summary Offences Act 1981 contain provisions similar to those of section 28
of the Summary Offences Act 1981 (above). They relate to disguises and possession of instruments for burglary. See the 'Burglary and
allied offences' chapter of the Police Manual.
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Examples of attempts to commit offences
Attempted theft
A person enters a parked car intending to steal items in the car; later, it cannot be proven that anything is missing from the car (factual
impossibility, but attempted offence committed).
Attempted sexual contact with young person under 16
Man invites boys aged less than 16 to enter vehicle for express purpose of committing an indecent act.
Attempted murder
A woman tries to shoot another person with a firearm she mistakenly thinks is loaded (factual impossibility, but attempted offence
committed).
Attempting to obtain money by deception
A person writes letter seeking money by false pretences although recipient not deceived; Light (1915) 84 LJ KB 865.
Attempted dishonest taking of motor vehicle
Person unlawfully gets into driver's seat of vehicle with intention of driving it away.
Attempted deception
A man arranges his own disappearance so his partner may collect his life insurance (DPP v Stonehouse [1977] 2 All ER 909).
Attempting to procure a controlled drug
A person contacts dealer, negotiates to purchase controlled drug, attends dealer's premises with money and asks to see a sample
(Police v Wylie and Anor [1976] 2 NZLR 167).
Offences that cannot be attempted
In some cases a principal offence cannot be attempted. Such cases include:
‑ the offence is one of recklessness or negligence. For example a charge of manslaughter arising from reckless driving is based on
an unintended consequence, i.e. the death. It is not possible to attempt to bring about something that is unintended;
‑ an element of attempt is part of the definition of the principal offence. For example, attempting to apply force is an element of
the offence of assault, so attempting to assault a person is in itself an assault;
‑ the offence is such that the act has to be completed in order for it to exist at all. For example, a person cannot attempt to
demand money with menaces because as soon as the demand is made the principal offence is committed.
Attempts at attempt
A person cannot attempt to attempt to commit an offence.
Acts to further an offence
In some cases, an act that is done to further the commission of an offence is punishable without needing to address the issue of
whether the act actually amounts to an attempt at that offence. For example, a person who has committed an assault with intent to
commit rape can be prosecuted for the assault, whether or not there is sufficient evidence to proceed with the charge of attempted
rape.
Jurisdiction
Attempts to commit offences covered by section 311 of the Crimes Act 1961 will be proceeded in the same category that would apply if
the complete offence was alleged, (refer section 6(2) of the Criminal Procedure Act 2011).
Part and alternative convictions
If a person is found not guilty of the principal offence but the evidence establishes an attempt, they can be convicted of the attempt
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Attempts
even though an attempt charge was not filed (section 149 of the Criminal Procedure Act 2011 refers).
If a person is charged with the attempt but the evidence establishes that the principal offence was committed, they can be convicted
of the attempt, or, if in the court's opinion the person will not be or has not been mislead or prejudiced in his or her defence by an
amendment, the court may amend the charge. After a conviction for an attempt however, the person cannot later be charged with the
principal offence (section 150 of the Criminal Procedure Act 2011 refers).
If a person is charged with the attempt to commit an offence that includes in its commission any other offence, they may be convicted
of an attempt to commit any of the offences included, even if the attempt to commit the whole offence is not proven (section 143 of
the Criminal Procedure Act 2011 refers; (attempts to commit offences are themselves offences)).
Parties
If a person intends to be a party to an offence and carries out the physical act that is his or her part in the offence, the ingredients in
section 72(1) are met. It is immaterial (on the question of the party's guilt) that it was impossible for the offence to be completed
because the principal offender did not carry out the physical act that was their part of the offence (R v Peneha (unreported), High Court
Invercargill, 22 November 1993, T 7/93).
Penalties
Some provisions include express penalties for attempts to commit specific offences; see for example section 268 of the Crimes Act that
provides for a penalty of imprisonment not exceeding 10 years for attempted arson.
If no express punishment is provided, section 311(1) of the Crimes Act 1961 applies. Section 311(1) provides that:
‑ where the maximum penalty for the principal offence is life imprisonment, an offender convicted of an attempt is liable to a
term of imprisonment not exceeding 10 years, and
‑ in all other cases, the maximum punishment for an attempt is one half of the penalty for the principal offence.
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Procedures
Action when suspect is attempting to commit an offence
Investigations into attempts should follow the procedure for the principal offence, with any necessary modifications. Follow these
steps.
StepAction
1
Establish intent. This can often be inferred from:
‑ the act referred to in the complaint; for example, when a shopkeeper reports an attempted burglary after finding jemmy
marks on the door to the premises
‑ suspicious behaviour
‑ interview with the suspect.
2
In the case of suspicious behaviour:
‑ watch the suspect until they do something that shows intent and is proximate to the offence, unless early intervention is
necessary to prevent the commission of a serious offence
‑ obtain the suspect's explanation
‑ complete enquiries
‑ consult your supervisor about prosecution.
Note: Where the suspect's actions are insufficient to constitute an attempt, consider whether there is evidence of preparing to
commit an offence, or of conspiracy.
Action when suspect may be preparing to commit an imprisonable offence
If a person is acting suspiciously, follow these steps.
StepAction
1
In a public place, watch until the suspect's actions amount to preparing to commit an imprisonable offence. Elsewhere, watch
until the suspect's actions amount to an attempt to commit an imprisonable offence.
2
Call for assistance and contain the scene.
Remember: The suspect may have company.
3
Obtain the suspect's explanation.
4
Complete enquiries.
5
Consider obtaining a warrant to search the premises and any vehicle.
6
Securely label and store any instruments or tools found. They may be used in court or examined alongside evidence from
premises to which entry has been forced.
Framing charges
When framing the charge, add the words "attempted to" before the main text. After the reference to the Act and section that creates
the full offence, add the Act and section that creates the offence of attempt (where applicable).
Example
"Attempted to enter a building, namely ( ), without authority and with intent to commit an imprisonable offence in that building.
Crimes Act 1961 s231(1)
Crimes Act 1961 s72"
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Calibrating Road Policing Equipment
Table of Contents
Table of Contents
2
Policy statement and principles
3
What
3
Why
3
How
3
Overview
4
Police Calibration Services
4
Ma n Off ce
4
echn c ans
4
Equipment tested and/or calibrated by PCS
4
Additional duties
4
Equipment calibration schedule and other requirements
5
Speed detection equipment
5
Alcohol detection equipment
5
Other equipment
5
District responsibilities in respect of equipment
6
Service costs
7
PCS covers calibration costs
7
Exceptions
7
Reporting
8
Calibrating Road Policing Equipment
Policy statement and principles
What
All Police equipment used for road policing enforcement must be calibrated and/or certified to international standards so it operates
accurately.
Why
esults from the use of such equipment can be used to issue infringement notices or as evidence in a court of law.
How
olice maintains a specialist group, the Police Calibration Services (PCS), which is primarily responsible for:
‑ maintaining the calibration and certification of speed enforcement equipment used by Police
‑ maintaining the calibration and certification of weighing enforcement equipment, primarily used by Commercial Vehicle Safety
Team (CVST)
‑ maintaining the calibration and certification of Total Station Forensic Mapping equipment, used by Serious Crash Unit staff
(SCU)
‑ maintaining a national database of all employees qualified to use speed detection equipment
‑ providing certified copies of calibration certificates for district employees as required for court defended matters
‑ nationwide coordination of all alcohol enforcement equipment
‑ management and supply of speedometer testing equipment and Crash Data Recorder kits to authorised employees.
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Calibrating Road Policing Equipment
Overview
Police Calibration Services
olice Calibration Services (PCS) is a specialist group within Road Policing Support, PNHQ. It is an International Standards
Organisation (ISO) accredited metrology laboratory in Wellington, and is required to meet all ISO requirements in terms of calibration
processes, documentation and auditing (ISO/IEC 17025). Maintaining these high standards provides assurance that the work
performed by PCS meets the highest of current scientific standards in the world.
Annually the PCS manages over 5000 individual items at their Wellington Laboratory and in the districts.
he PCS is located at:
s.9(2) OIA
and can be contacted between 0800 ‐ 1600 hours (Monday to Friday excluding public holidays) as follows:
Main Office
s.9(2) OIA
Technicians
s.9(2) OIA
Equipment tested and/or calibrated by PCS
‑ Stalker Radars
‑ Stalker Lidars (lasers)
‑ Redflex Red Light, mobile and static safe speed cameras
‑ Red light & static safe speed camera sites
‑ Weighbridges
‑ Portable scales
‑ Electronic Distance Measuring Equipment (used by SCU).
Additional duties
Additional duties performed by PCS includes:
‑ training district staff to test Police car speedometers
‑ maintaining vehicle speedometer test kits
‑ testing new enforcement equipment
‑ management of Dräger 7510NZ & 9510NZ Alcohol Breath Test devices
‑ providing specialist responses to speed and alcohol disclosure requests (especially ones that relate to calibration of test
equipment, and accuracy of the devices)
‑ training district mobile speed camera operators
‑ maintaining database of Speed Detection Device Operators & Instructors
‑ management of CDR equipment
‑ liaison with manufactures of specialist equipment.
Note: Districts pay all costs of travel for their staff attending training programs provided by the PCS.
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Calibrating Road Policing Equipment
Equipment calibration schedule and other requirements
Speed detection equipment
his table details the PCS role and requirements in respect of speed detection equipment.
Equipment
FrequencyPCS must. . .
Radar speed devices
Annual
calibrate:
‑ within the District, within 24 hours of the unit being delivered (provided it arrived before
0900 hrs on the day allocated for its calibration)
‑ within 3 working days of a device being returned from a service agent to the Wellington
laboratory.
Mobile and static safe Annual
‑ calibrate cameras within 2 days of their arrival at the Wellington or Masterton laboratories
speed cameras
(weather permitting)
‑ conduct static camera site inspections and produce certificates of compliance in
accordance with section 146 of the Land Transport Act 1998.
Laser speed detection Annual
‑ calibrate within 7 days of their receipt at the Wellington or Masterton laboratories
devices
(provided it arrives before 0900 hrs on the day allocated for its calibration)
Alcohol detection equipment
This table details the PCS role and requirements in respect of alcohol detection equipment.
Equipment FrequencyPCS must action. . .
All alcohol
‑ Refer devices received from districts for calibration to Dräger
devices
‑ return alcohol devices to the district within 24 hours of calibration by Dräger
‑ advise the relevant Road Policing Manager (RPM) within 5 working days of being so advised by
Dräger, of alcohol devices being removed from service.
Other equipment
This table details the PCS role and requirements in respect of other equipment.
Equipment
FrequencyPCS must. . .
Electronic distance measuring devices Annual
‑ calibrate within 3 days of receipt at the Wellington laboratory (weather
(used by serious crash investigators)
permitting)and provided it arrives before 0900 hrs on the day allocated for
its calibration.
Other non‐specified devices
As
‑ calibrate within 7 days of receiving the unit at an appropriate laboratory.
required
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Calibrating Road Policing Equipment
District responsibilities in respect of equipment
Districts must:
‑ present all devices (complete with all parts as required) for calibration on time and on the allocated day as specified by PCS
(
Note: PCS holds any device presented for calibration that is not complete, until all parts are received)
‑ pay all costs for repairs to district‐owned devices charged by the authorised Service Agent
‑ ensure that speed, distance measuring, CDR and alcohol devices are properly looked after and operated correctly
‑ pay to replace or repair any device that is leased and supplied to a district by PCS that is lost or sustains damage that is not
considered normal operational wear or usage, or where the said item is proven to have been lost in transit by courier
‑ pay to replace or repair any device that is owned by Police and supplied to a district by PCS that is lost or sustains damage that
is not considered normal operational wear or usage, or where the said item is proven to have been lost in transit by courier
‑ acknowledge the PCS policy to impound speed equipment provided by PNHQ to the district, that has not been used, or:
‑ for lasers, has been used for less than 160 hours in any calibration cycle;
‑ for radars, has been used for less than:
‑ 800 hours by Highway Patrol in any calibration cycle;
‑ 500 hours by Road Policing Units (except CVST) in any calibration cycle;
‑ 250 hours by all other work groups in any calibration cycle.
Note: Where speed equipment is impounded under the policy due to insufficient use, the device may, on the first occasion, be returned
to the District Road Policing Manager for relocation within the district. If any device is impounded twice from the same district it must
be returned to PCS for relocation to any other district / work group.
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Calibrating Road Policing Equipment
Service costs
PCS covers calibration costs
he PCS provides calibration services to the districts and covers these costs:
‑ costs to freight devices / equipment back to districts after calibration
‑ costs to freight faulty devices / equipment (rejected by the PCS) to the authorised service agent
‑ service calibration costs for Dräger devices, but not any costs associated with physical damage or misuse of the device (see
‘Exceptions’ below)
‑ all lease costs for radar and laser equipment not owned by Police, and all normal maintenance costs associated with this
equipment.
Exceptions
Districts must pay all costs associated with loss or damage to:
‑ speed detection equipment (including radars, lasers, safe speed cameras, lost tuning forks and all associated equipment, e.g.
radar remotes, power cables etc.)
‑ alcohol equipment
‑ equipment contained in vehicle speedometer testing kits supplied by Police Calibration Services
‑ electronic distance measuring devices
‑ CDR kits
Where:
‑ that loss or damage is due to circumstances other than normal wear and tear, or
‑ the item is proven to have been lost in transit by courier.
Should a district fail to provide devices for calibration when they are requested by PCS, the district may be charged any additional
costs incurred.
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Calibrating Road Policing Equipment
Reporting
CS provides districts with:
‑ reports on the location of all speed and alcohol devices provided to the district by PCS, as and when required
‑ reports on equipment that is overdue for calibration
‑ reports on any other performance assessment of equipment, as and when required
‑ certificates of accuracy within two working days of receipt of any request.
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Control of high-power laser pointers
Table of Contents
Table of Contents
2
Policy statement and principles
3
What
3
Why
3
How
3
Overview
4
What uses do laser pointers have?
4
What is a high‐power laser pointer?
4
Mean ng of ow d vergence
4
How powerful are laser pointers?
4
Controls on high‐power laser pointers
5
Restrictions on sale and supply
5
Import restrictions
5
Laser devices exempted or not considered high‐power
5
Police are authorised suppliers or recipients
5
Offences
6
Summary Offences Act 1981
6
Health (High‐power Laser Pointers) Regulations 2013
6
Customs and Excise Act 2018
6
Civil Aviation Act 1990
6
Crimes Act 1961
6
Other
6
Guidance for specific offences
8
Offences against aircraft
8
Identifying high‐powered laser pointers
9
How can you tell if a device is a high‐power laser pointer?
9
Laser light characteristics
9
Typical labels
9
Laser pointers and torches
10
Surveying and measuring devices (exempt)
10
Hunting devices and laser flares (exempt)
10
If in doubt, contact the Ministry of Health
11
Control of high-power laser pointers
Policy statement and principles
What
Laser pointers are a type of laser, with laser meaning ‘Light Amplification by Stimulated Emission of Radiation’. Laser pointers emit a
tightly focused beam of light that can be concentrated onto a very small area over long distances. While the power in the beam may be
only a few milliwatts, the concentration of this power onto a small area creates a point of very high intensity.
Lower‐power laser pointers have been sold unrestricted for many years in New Zealand, but more powerful laser pointers have now
become available at relatively low cost, often via the internet. Purchase of these from overseas suppliers via the internet is not difficult,
and importation into the country will likely only be noticed by Customs if the labelling of the product on declaration certificates is
accurate.
Why
There have been incidents of laser beams directed into the cabins of moving motor vehicles and the cockpits of flying aircraft. This
reckless practice can blind drivers and pilots and endangers life.
How
‑ The supply of, and receipt of high‐power laser pointers is controlled by the Health (High‐power Laser Pointers) Regulations 2013
, and is limited to authorised suppliers and recipients.
‑ The Customs Import Prohibition (High‐power Laser Pointers) Order 2019 prohibits the importation of high‐power laser pointers
except with the consent of the Director‐General of Health.
‑ Purchase of high‐power laser pointers from overseas suppliers over the internet is not difficult, therefore, there is a high risk of
these devices being available in the community.
‑ It is an offence against 13(b) of the Summary Offences Act 1981 for anyone, in a public place, to be in possession of a high‐power
laser pointer without reasonable excuse.
‑ High‐power laser pointers can generally be identified by description labels found on the device. Lasers used for surveying,
measuring or hunting are generally exempt from regulations.
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Control of high-power laser pointers
Overview
What uses do laser pointers have?
Laser pointers are often used as presentation aids by lecturers and teachers and are also used for recreational purposes ‐ to shine onto
objects. The lower‐power laser pointers are sufficient for such purposes. The higher‐power ones can be shone into the night sky and
are used by astronomers. Some researchers or scientists may also use them.
What is a high‐power laser pointer?
The Health (High‐power Laser Pointers) Regulations 2013, the Customs Import Prohibition (High‐power Laser Pointers) Order 2019,
and the Summary Offences Act 1981 define a
high‐power laser pointer as a device that:
‑ in the Director‐General of Health's opinion, is of the kind commonly known as a laser pointer; and
‑ is battery operated; and
‑ is designed or intended to be operated while held in the hand; and
‑ produces a coherent beam of optical radiation of low divergence; and
‑ has a power output
of greater than 1 milliwatt (mW).
Meaning of low divergence
In this context, low divergence means a beam that does not fan out like, for example, a torch beam.
How powerful are laser pointers?
Laser pointers come in a range of power outputs. The power output is usually measured in milliwatts. As a guide, the relationship
between power and potential harm of the different types of laser pointer is shown in this table.
Laser pointer output power
Health risk posed
Up to and including 1 milliwatt Low‐risk
Greater than 1 and up to 5
Relatively low‐risk, but could still potentially cause some harm to the eye (e.g., if shone into eyes
milliwatts
from a short distance)
Greater than 5 and up to 500
Risk of eye damage
milliwatts
Greater than 500 milliwatts
Can burn skin and damage eyes
There are schemes which classify laser pointers according to the risks they pose. The classification may use Arabic numerals (1, 2, 3, 4 ‐
with or without a letter after the number) or Roman numerals (I, II, III, IV ‐ with or without a letter after the number). Laser pointers of
Class 1, 2, I, II or IIA have a power up to and including 1 milliwatt and so would not be covered by the Health or Customs Regulations.
At a glance most people will not be able to tell the difference between a low‐power laser pointer and a riskier high‐power pointer.
While some devices have their power outputs written on them, most people cannot readily translate such inscriptions (e.g., '5 mW')
into the potential for harm to be caused by such a device.
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Control of high-power laser pointers
Controls on high‐power laser pointers
Restrictions on sale and supply
The Health (High‐power Laser Pointers) Regulations 2013 restrict the sale/supply of high‐power laser pointers to those who are
'authorised suppliers'. The regulations also restrict the acquisition of such devices to those who are 'authorised recipients'. The
Director‐General of Health may authorise (upon application) a person or class of person to supply or acquire high power laser pointers.
Offences against these regulations include:
‑ Supply by a non‐authorised supplier
‑ Supply to an non‐authorised recipient
‑ Acquisition using misleading or deceitful means.
The Director‐General of Health is the only person who can authorise suppliers/recipients and
Police have no specific search and
seizure powers under the regulations.
Import restrictions
The Customs Import Prohibition (High‐power Laser Pointers) Order 2019 prohibits the importation of high‐power laser pointers,
except with the
consent of the Director‐General of Health.
See PDF below: Police authority to import
‑
Approva o impor aser poin ers March 2020
101.75 KB
Laser devices exempted or not considered high‐power
The regulations do not apply to:
‑ specialist equipment for use in construction or surveying
‑ equipment used to measure distances
‑ equipment supplied with fixtures for mounting on a firearm (as a sighting aid)
‑ devices intended for use as a rescue flare.
No consent needed
Consent required
‑ Power ≤1 mW
‑ Power greater than 1 mW
‑ Class 1x, 2x, Ix, Class IIx (x any letter)
‑ Class 3x, Class 4, Class IIIx, Class IV (x any letter)
‑ Laser used in surveying, construction or distance measurement
‑ Device supplied with attachments for mounting on rifle
‑ Rescue flare
Police are authorised suppliers or recipients
The Director‐General of Health has
declared "the New Zealand Police and all Police employees (as defined in the Policing Act 2008)
acting in the course of their duties" to be authorised suppliers or authorised recipients.
See the Supply, acquire and import of high‐power laser pointers delegation.
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Control of high-power laser pointers
Offences
Summary Offences Act 1981
Under section 13B of the Summary Offences Act 1981 anyone who, in any public place, without reasonable excuse, has any high‐power
laser pointer in their possession commits an offence. If convicted, the penalty is imprisonment for a term not exceeding 3 months or a
fine not exceeding $2,000. In addition the court may order that the high‐power laser pointer be forfeited to the Crown.
Where this offence has been committed, Police may seize the high‐power laser pointer pursuant to arrest or while conducting a lawful
search power (see sections 88 and 123 of the Search and Surveillance Act 2012).
For any prosecution where there is a dispute about whether the device is a high‐power laser pointer, the following steps may need to
be taken.
StepAction
1
A picture along with information about the laser pointer will need to be sent to the Ministry of Health
([email address]). The Director‐General of Health (or delegate) will advise by letter whether the laser pointer "is of a
kind commonly known as a laser pointer".
2
The laser pointer will need to be tested to confirm whether it meets the requirements of section 13B(3)(b) ‐ (e).
Health (High‐power Laser Pointers) Regulations 2013
Offences include:
‑ supplying such devices to non‐authorised suppliers or recipients (regulations 4 and 5)
‑ acquiring such devices using misleading or deceitful means (regulation 6)
‑ authorised suppliers who acquire high‐power laser pointers for any purpose other than supply (unless they are also an
authorised recipient) (regulation 7).
A person who commits an offence against the regulations is liable upon conviction to a maximum penalty of $500 under section 136 of
the Health Act 1956. There are no specific powers of seizure. The Ministry of Health has primary responsibility for investigations and
prosecutions against the regulations.
Customs and Excise Act 2018
Section 388(1)(a) of the Customs and Excise Act 2018 provides for the offence of importing prohibited goods. If convicted, an individual
is liable to a fine not exceeding $5,000. A body corporate is liable on conviction to a fine not exceeding $25,000.
Civil Aviation Act 1990
Where a high‐powered laser is shone at an aircraft that is in the air, or in the process of taking off or landing, there is the provision for
an offence in the Civil Aviation Act. Under section 44 of the Civil Aviation Act 1990, any person who does any act in respect of an aircraft
in a manner which causes unnecessary danger to any other person or property is liable on conviction to a term of imprisonment of 12
months or a fine not exceeding $10,000.
Crimes Act 1961
Similarly, where a high‐powered laser is shone at an aircraft that is in the air, or in the process of taking off or landing, there is the
provision for an offence in the Crimes Act where the offending or is more serious. Under section 270 of the Crimes Act 1961, everyone is
liable for a term not exceeding 14 years who with intent to cause danger to persons or property, or with reckless disregard for the safety
of persons or property, interferes with any transport facility or does anything to any transport facility that is likely to cause danger to
persons or property. Under section 270(2), transport facility includes an aircraft and equipment of any kind used in navigation or for the
guidance of an aircraft.
Other
Other offences may be committed through improper use of a laser. Such offences could include:
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Control of high-power laser pointers
‑ Assault if a laser is deliberately shone in someone's eyes or at their body (see Graves v Police (HC Rotorua, Lang J, 12/12/10, CRI‐
2010‐463‐57).
‑ Acts endangering public safety if shone at drivers.
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Control of high-power laser pointers
Guidance for specific offences
Offences against aircraft
High‐powered lasers aimed at aircraft is a regular occurrence. Where it is shone into the cockpit it can potentially cause “flash
blindness” or temporary blindness to the pilot. This can last for up to three minutes and presents a serious risk to the safety of the
aircraft. Typically, these incidents will occur at airports as aircraft are landing or taking off. Where a laser has been aimed at an aircraft,
the pilot will notify air traffic control who will then notify Police.
For further assistance or guidance on incidents involving laser strikes on aircraft, the Civil Aviation Authority (CAA) is available. Their
contact details are:
‑ Phone: 0508 4SAFETY (0508 472338) ‐ a voicemail can be left after hours
‑ E‐mail: [email address]
‑ Website: https://www.aviation.govt.nz/
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Control of high-power laser pointers
Identifying high‐powered laser pointers
How can you tell if a device is a high‐power laser pointer?
The Ministry of Health has developed a flow chart to provide some practical guidance to help identify whether or not a device is a high‐
power laser pointer covered by the new controls:
‑
Laser poin er diagram (MoH).pd
937.27 KB
Laser light characteristics
‑ Single colour (e.g., red, blue, green).
‑ Fine beam, low divergence (i.e., doesn't spread or fan out, like a torch).
‑ Laser speckle when shine on matt surface.
Typical labels
You can also identify these devices by checking their labels.
However, labels are small and can be hard to read, as shown in this diagram.
If a device has no labelling, look at the power source:
If . . .
then . . .
and . . .
only one button battery
assume less than 1 mW
the device is exempt.
two or more button batteries, or AAA assume greater than 1mW, import consent
the person in possession must prove they are
or bigger, or external battery
needed
an authorised supplier or recipient.
still in doubt
the person in possession must prove they are
an authorised supplier or recipient.
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Control of high-power laser pointers
Laser pointers and torches
Laser pointers and torches can look very similar as shown in this diagram.
This diagram shows a hybrid laser pointer/torch device.
Surveying and measuring devices (exempt)
This diagram shows some typical surveying or measuring devices which are exempt.
Hunting devices and laser flares (exempt)
This diagram shows some typical hunting devices and laser flares which are exempt.
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Control of high-power laser pointers
If in doubt, contact the Ministry of Health
If you are still unsure, you can email the Ministry of Health at [email address]. Provide your contact details and a
description of the device (and a photo, if possible). Provide as much information about the device as you can. For example, its output
power, a link to the manufacturer's or supplier's website, any labelling or documentation provided with the device, etc.
For more information see the Ministry of Health information website.
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